Notes on the Nuclear Option -- Part XX

by Kagro X

Careening down the highway aboard the Nuclear Option Express, heedless of the possibility of a disastrous collision, it seems certain Republicans have just hit upon the idea that it might be a good idea to take a glance up at the road ahead.

'Nuke' could backfire, say some on right
By Jonathan Allen

Some conservatives are worried that a filibuster-crushing Senate rules change could backfire on their movement, ultimately robbing them of a powerful weapon they have used effectively to battle liberals and centrists in the past.

Oh, you don't say?

If Republicans change Senate rules to bypass filibusters and win confirmation for President Bush’s controversial nominees to the judiciary, what is known as the “nuclear option,” these conservatives fear that, should Democrats win the majority in the fall, Republicans would be handing them a powerful weapon that could be used to move pet executive-branch nominees or legislation.

Uh-oh! It looks like "elections have consequences" beyond the immediate gratification of your base, maybe even unintended ones! And what might be the impact of such unintended consequences? Let's ask one conservative parliamentary expert:

That would be devastating, one conservative parliamentary expert warns.

“Everyone, I think, who has ever carried the water for the conservative movement in the Senate believes it’s a horrible idea,” said Mike Hammond, former general counsel to the Senate Steering Committee, the traditional base of operations for Senate conservatives. “Most of us feel that it is functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation.”

OK, that's just one. How about others? Surely there are other respected conservatives who share Hammond's view, and would be willing to discuss the topic on the record, in order to avoid this devastating outcome.

Several respected conservatives who share Hammond’s view declined to discuss the topic on the record for fear of upsetting powerful senators and interest groups.

Oh well.

But let's go back to the second part of Hammond's comments for a moment:

“Most of us feel that it is functionally impossible to separate filibusters of judges from filibusters of nominees from filibusters of legislation.”

That's a key issue that Republicans have yet to deal with honestly. It was the subject of much speculation on our side of the aisle, though, by a number of people who felt that letting the runaway train of the nuclear option run unimpeded through the station was the best possible strategy. Their argument was that the filibuster is an inherently conservative, even reactionary tool, designed specifically to impede change rather than to foster it, and that that historically weighed against progressives, the agents of change.

But it was my opinion that the argument depended on a now-outdated definition of "conservative" -- one which finds little or no application among today's Republican Senators, who are often as "activist" as the dwindling ranks of the progressives once were. In othe words, Senate Republicans can be as much about change -- radically reactionary change, but change nonetheless -- as progressives ever were. And that can't be counted as a good thing, particularly in the absence of the ability to filibuster their insane, kamikaze plunges into privatization, theocracy, or what have you.

Even so, the theories espoused by Democrats unfazed by the prospect of the nuclear option were not entirely unfounded, at least so far as the mechanics were concerned. And here, Hammond backs them up:

Hammond and others worry that in their zeal to seat more judges conservatives ultimately could lose a powerful tool that has been used, and would surely be used again, to frustrate the legislative priorities of liberal Democratic majorities.

Others have argued that the rules for nominations should be changed but that the method discussed by the Senate Republican leadership — relying on a simple-majority vote on a parliamentary question — would pave the way for the Senate to abandon its rulebook again and again.

So yes, there's certainly an argument to be made on a purely procedural level that eliminating the filibuster may be a good thing. It requires that you ignore the current reality that today's Republicans are not conservatives, but absent that, there was some merit there.

It must also be said, however, that the assumptions made about the possible benefits of the elimination of the filibuster appear not to have taken Republican duplicity fully into account, which is an amazingly dangerous mistake to make, especially given the benefit of an extra year's worth of hindsight. That extra year has revealed to us exactly how far from what the rest of the human race regards as logical consistency the Republican Party is willing to stray for immediate, partisan advantage. The argument of Democratic nuclear option contrarians was that the elimination of the filibuster would throw the doors wide open for a future Democratic majority in the Senate to enact sweeping, progressive change. But who said anything about legislation? John Ensign certainly didn't:

Sen. John Ensign (R-Nev.), however, disagrees. He said in a brief interview last week that legislative filibusters would not be threatened by a rules change on judicial nominations.

“That’s completely different,” Ensign said. “This is something addressed by the Constitution.”

Oh yes. Completely different. In every way that something not at all different and in fact logically inseparable can be different. But there you have it. Republicans protect themselves from the prospect of the future progressive utopia envisioned by nuclear option contrarians by simply declaring its power to end at the fictional border between judicial nominations and everything else the Senate does.

Here's the nugget that begins to hit on the problem:

Many Republican senators say they believe the Constitution guarantees a simple-majority vote to the president’s judicial nominees and refer to the “nuclear option” as the “constitutional option.” They base their arguments on a paper co-written by former Senate aide Martin B. Gold in the Harvard Law Review in support of the maneuver. But critics note the paper does not seek to draw a distinction between judicial nominations and other matters.

This is true. And remember, there were two reasons Republicans offered to bolster their "constitutional" option rebranding effort: 1) the reason Ensign clings to now -- the reading of the Art. II, Sec. 2 requirement of "Advice and Consent" to refer to Frist's insistence on "upperdownvotes," and; 2) the reason Ensign now abandons -- the reading of Art. I, Sec. 5's allowance that "Each House may determine the Rules of its Proceedings" to mean that the Senate may change those rules at any time, by majority vote.

What happened to that second justification? Well, it's been mysteriously dropped. Why? Well, perhaps partially for the reasons discussed in Part III of this series, including the fact that the Harvard Law Review article cited above bases its argument on the assumption that the Art. I, Sec 5 rulemaking power is invokable only at the beginning of a new Congress. But it seems equally clear that it was dropped because of the inconvenient ramifications. Namely, that it erases the distinction between filibusters for judicial nominations and any other Senate business, including routine legislation. If the Senate can change its rules by majority vote, there's nothing to separate the nuclear option for judicial nominations from the nuclear option for anything else.

The proof? Look no further than... the Republicans themselves. Whether it was because they were desperate, or just lazy, it took no longer than six months from the end of the nuclear option crisis for the GOP to begin threatening to resort to its use on legislation.

Senate Republicans prepared a targeted version of the so-called “nuclear option” yesterday as they tried to ensure adoption of a defense-spending conference report that includes a controversial provision opening the Arctic National Wildlife Refuge (ANWR) to oil and gas drilling.

The tactic promises to make the consensus-based Senate temporarily resemble the majority-dominated House.

Whoops! You got your Stevens in my Ensign! No, you got your Ensign in my Stevens!

Yes, that's right. The "tactical nuclear option" noted above (and described in more detail in Part XIX) was the impetus for Senator Ted Stevens' infamous "Hulk smash puny Senate!" tirade, in which he threatened to resign if he didn't get his way. He didn't. And, incidentally, he didn't.

So Stevens says the nuclear option can be used on legislation. Ensign says it can't. What about Jon Kyl? In Part XVIII, we discuss Kyl's floor speech (PDF) in defense of the nuclear option, in which he argues:

[T]he Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that "Each House may determine the Rules of its Proceedings."

Citing the 1892 case of U.S. v Ballin, Kyl discusses the holding and concludes:

The power of the majority of Senators to define Senate procedures is one that exists at all times -- whether at the beginning, middle, or end of Congress.

So it appears that the question of whether or not the nuclear option applies to legislation depends on what day it is. Or at least, which Republican Senator you're talking to.

The only things we can be sure of are these: 1) the argument that the Constitution requires an "upperdownvote" for all judicial nominees died quietly at Republican hands with the Harriet Miers nomination; 2) the argument that Sen. Ensign offered last week has been dead and buried for a year, also killed at Republican hands, and; 3) that duplicitous and opportunistic Republicans (not the conservative ones upon whom the Democratic contrarians' argument depends) will do or say whatever it takes to make sure that the nuclear option is used to get what they want and only what they want, while denying the logical consistency that was supposed to lead to what the contrarian dreamers envisioned.

Comments

[DemFromCT]

You can't trust these guys. Period. Not the R's in the Wh and not the R's in hte senate and not the R's in the House.

Iraq has consequences for more than just Bush (it's the Mother Of All Distrust). And it will take its toll in the fall.

[Marysz]

I guess the Republicans have been so blinded by their conviction that America will be ruled in perpetuity by a "Republican Majority" that they've forgotten what it might be like if the shoe were on the other foot. They've completely lost the capacity to imagine what it would be like if they were out of power. Why else would they behave so foolishly? Unless of course, they're confident they can somehow fix future elections to make sure they always win.

[Steve]

I've always been of the belief, from the moment I heard it live on C-SPAN, that the Kyl speech represented the actual justification that the GOP intended to advance if they had decided to pull the trigger.

I welcome the thought of the Democrats fighting fire with fire. If the Republicans decide to go down this road, and establish a precedent that the rules can be changed by majority vote at any time, there is no reason why the legislative filibuster should last past the first day when Democrats hold a majority in the Senate.

There are a number of Republican "innovations" in this Congress - such as, for example, the practice of holding votes open for hours and hours, or the constant gamesmanship with conference reports - that I don't want to see the Democrats get involved in matching tit for tat, because I believe they are bad for democracy and bad for America.

But the filibuster is relatively neutral (although I do think it comports with the spirit of the Founding). It can safely go, and it's important to send a message that gameplaying with the rules has its consequences. No one really knows if the Republicans had the votes to pull off the nuclear option in the first place (my money says no), but the landscape is clearly tougher for them now than it was in 2005, and my instinct is that this threat is going to be enough to dissuade them from the notion permanently.

[Henry Clay]

Regarding Kyl's speech (and the underlying link above back to an earlier posting on Oct 31 2005), what he's talking about is the basic way the Senate functions. All Senators know that it's a countermajoritarian body ONLY because the Senate wants it to be. Kyl is speaking to a constitutional fact: the Senate gets to define its own procedures, rules, and customs, and the Constitution (per Ballin) also allows it to do so on a majoritarian basis. Now, the CUSTOMS of the Senate say that the Senate should abide by the written rules it has adopted, AS WELL AS the precedents of the body -- which are kind of like court precedents, except they sometimes are contrary to the written rules -- when doing business. So Kyl's point is that, when the customs fall apart (the partisan filibustering of judges), it's reasonable that the Senate, as a body, would respond and try to cope with the resulting instability that it caused. So, you get the nuclear option.

What about legislation? There's no instability to address in that case, only irritation by a cranky old man who wants to get his way politically. The Senate, as a body, has no reason -- zippo -- to change its rules to address what is NOT a problem. The nuclear option was never designed just to let the GOP get its judges through; it was designed to return the Senate to the norms and customs that had governed it for most of its history.

So, like Kyl says -- action, then reaction. Instability demands righting the ship, returning it to the status quo ante. That's what it was about. Legislation? All but about 5 Senators LOVE the supermajoritarian protections of the Senate, and no piece of legislation is going to make them change it. The filibuster of judicial nominations was a "new" right (because never really used) that hadn't really vested; they were perfectly willing to get back to basics.

Henry

[Steve]

Right, and the difference between filibustering a vote on judges and filibustering a vote on legislation is... what, exactly? If you're not going to buy into the argument that "advice and consent" somehow requires an up-or-down vote (which is a silly argument, and Kyl correctly takes a pass on it), then the only reason there's a difference between the two is that it's necessary to manufacture a difference in order to argue that a "partisan filibuster" of judges is unprecedented. (Does this mean that the new rule, as amended, will somehow still permit "bipartisan filibusters" as occurred with Fortas?)

I could just as well argue that it was completely unprecedented for a partisan minority to filibuster health care legislation before the GOP wrongfully filibustered Hillarycare, and thus the rules of the Senate should have been amended to halt that filibuster. It's just as legitimate an argument as the claim that a filibuster of a presidential nominee - wait, a filibuster of a judicial nominee - wait, a partisan filibuster of a judicial nominee - wait, a partisan filibuster of a judicial nominee with clear majority support - has never occurred before.

[Henry Clay]

The difference is that the Senate, which gets to decide these things, just doesn't view the filibuster of legislation as offensive to its practices and procedures or to its traditions.

Now, YOU can argue that it's unique to filibuster Hillarycare, but Senators won't make that argument. They know that legislation is legislation, and they all want to protect their prerogatives. In contrast, as Kyl said in his speech, the Senators just didn't think they really *had* a right to filibuster judicial nominees. Norms govern here, not formal rights. Just consider that not a single Senator currently serving has ever proposed the outright abolition of the filibuster for legislation . . . well, except for the handful of Democrats like Joe Lieberman and Tom Harkin who tried to do something very much like it in 1995. Certainly no Republicans have ever taken that position, even in 1995 when they were in the majority and had ever incentive to neuter the minority.

Finally, it's not that "advice and consent" requires an up or down vote. It is that the Senate majority (not the majority party, but a majority of Senators) is entitled to process the nominee as it sees fit. Committee holds are no big deal, because the Committee is the delegate of the majority. Refusal to take up on the floor? Same thing -- majority decision. The Kyl argument is that that the majority should rule on judicial nominees -- GOP or Dem President or control.

[Steve]

The "tradition" is a complete phony. It's nothing more or less than a power grab, which is why the Democrats are entirely justified in threatening their own power grab by ditching the filibuster for legislation once they regain a majority.

Historically, the minority simply didn't need a filibuster for judges because of the numerous other minority protections available, such as the blue slip that let Republicans block numerous Clinton appointees by the will of a single Senator. The fact that the Republicans did away with those minority protections as soon as Bush took office shows you how much concern they have for "tradition."

What about the Fortas case? Oh, that was a bipartisan filibuster, we're told. Exactly what difference does that make? It's simply a definitional game where all the counterexamples are excluded from the "tradition" just so someone can claim it exists.

Did Republican Senators like Bill Frist completely forget about this "longstanding tradition" of the Senate when they voted to deny cloture on Clinton nominees? Oh, but they didn't succeed in blocking cloture, so it doesn't count as a filibuster, we're told. Well, guess what - unless a filibuster is still ongoing today, that means that either a cloture vote succeeded or the nominee was withdrawn. That doesn't mean no one was filibustering. The fact is that Republicans who opposed cloture on Clinton's nominees never thought for a second that some "tradition" of the Senate prevented them from doing so.

We've been over all this before, which is part of why we're on "Part XX" of the nuclear option series. No one is buying that the GOP is just looking to be stalwart defenders of Senate tradition - hence the reason they have been running around offering about ten different justifications for ending the filibuster. They intend to break the rules to change the rules; and they really won't be in any position to complain when that precedent gets used against them down the road.

[Henry Clay]

Sen. Kyl answers all your concerns in his speech, as well as in the policy paper her published via his Republican Policy Committee. The question you can't answer is why nearly every GOP Senator was willing to give up their "right" on a permanent basis if they believed it really was a right. They answered it repeatedly: because they never believed it was a right, and all they were doing was confirming the norm and practice that had always governed the Senate. Put simply, one does not "grab" power by returning the Senate to the status quo ante February 2003.

Oh, and the cloture votes on Paez and Berzon *confirmed* the existence of that past practice. Frist should have just acknowledged that he was wrong in 2000. Kyl voted for cloture on both noms; he had no such need.

On Fortas, he was prematurely withdrawn, and there was never a majority prepared to support him. Go back to first principles: was the Senate majority's constitutional power to govern being thwarted? No evidence of that.

[Steve]

There is zero evidence that Fortas didn't have a majority; it's just ambiguous whether he did or didn't. Probably because he was denied a floor vote by a filibuster! Anyway, you are once again defining the "tradition" down to the point of absurdity by saying "well, there's a tradition of not filibustering anyone who has a clear majority for confirmation." That makes no sense. The way you find out if someone has a majority for confirmation is to vote on them.

Frist should have just acknowledged that he was wrong in 2000.

Yes, he and 13 other Republicans, all of whom just happened to forget that there was a centuries-old tradition of not filibustering judicial nominees right up until the Democrats started doing it. Has a single one of these Senators "acknowledged that they were wrong"? No, because calling any attention to that vote would make the entire nuclear option position look silly.

Anyone can get up and make a pious speech on the Senate floor and talk about how strongly they believe in the "traditions" of the Senate; there's no way to look inside their heart and know if they really mean it. The only way to judge them is by their actions. And when the current Senate Majority Leader, together with several other Republicans who are still in the Senate today, voted to deny cloture on a nominee who enjoyed "clear majority support," they can't credibly claim that there's some long-standing tradition of the Senate that says nobody should ever do the exact thing they did.

You can keep this up until you're blue in the face, but you'll never be able to establish that Kyl's position is sincerely believed by Frist or any of the other Republicans who voted against cloture of Democratic nominees, nor will you be able to account for the fact that other Republicans have offered about a half-dozen other justifications for the nuclear option that are completely different from Kyl's position, the one that "everybody knows" is a long-standing tradition of the Senate. I'll give you the last word at this point, if you want it.

[Henry Clay]

I suppose the probelm is that I am burdened by personal knowledge of how the Senators feel about this. If you believe they're lying, you believe they're lying, but I've followed this from the inside and I'm just telling you that your understanding of the Senators' beliefs as to their norms and traditions of the Senate is just wrong. It's an understandable misunderstanding, because politicians give us plenty of reasons to distrust them, but they do have beliefs. Here, Senators such as Kyl and McConnell and Hatch and Lott and Santorum -- the main leaders of the nuclear option movement -- all had a consistent position that went well back into the Clinton years.

Before I became more personally acquainted, I would never have believed that the notions of institutional stability and adherence to norms and traditions were so important to these guys, but they are. (The motivation of a Senators like, say, John Warner, in supporting the Gang of 14 was no different. He thought the nuclear option was destabilizing, even as he conceded that the filibusters violated the norms.)

Nice chat.